Commercial Actions

The Court of Session has for many years had special provisions for dealing with commercial actions to enable specialist judges to handle commercial cases quickly and flexibly.

The definition of "commercial action" is broad and so a wide range of cases may be dealt with under those arrangements. Generally, they include any transaction or dispute of a commercial or business nature. Examples are banking and insurance transactions, contracts for the sale or supply of goods or services (national or international) and commercial leases. The court also deals with disputes about building contracts, partnership agreements, professional negligence, and business property. Company and insolvency petitions, raised under the Acts found in Division I of Volume 4 of the Parliament House Book, are also dealt with by the commercial judges.

The preliminary stages

Shortly after a commercial action begins it is allocated to one of the four judges. In general, that judge will be responsible for overseeing the progress of the case and for deciding it at first instance. If a change has to be made, the case will be transferred to another commercial judge. Very soon after its allocation to the particular judge, the action will be brought before him or her for a preliminary hearing. The purpose of that hearing is to take stock of the dispute and to choose what appears to be the best means of resolving it. As a result of pre-litigation discussion, the features of the dispute ought already to be well defined and, with only a little preliminary treatment, the case can be sent for judicial determination. Where the dispute is on a point of law, such as the interpretation of a contract, the court may be able to decide it without hearing evidence. When there is a dispute on the facts, the court may quickly order a hearing of evidence. More commonly, it will be necessary to hold a procedural hearing before the issues are sufficiently focused to allow the case to be sent for debate or the hearing of evidence.

At those preliminary stages the judge will take an active part in the discussions. His or her intervention may help parties to narrow the gap between them and lead to an early settlement. In other cases some important issue or issues may be singled out from the rest and dealt with separately in the hope that, by resolving that point, the court will help to resolve the whole dispute. The court may ask a suitable expert to decide, or express a view on, some technical aspect of a case. For example, the court might send a question of valuation in a building contract dispute to a quantity surveyor for that purpose.

The preliminary stages are essentially informal and have the character more of a chaired discussion than of a formal court hearing. Consistent with that, neither the judge nor the parties' representatives wear formal court dress at those hearings. This informality has since been extended to all hearings with the exception of those where oral evidence is to be led.

Pleading the case

While written pleadings (summons and defences) remain the primary method by which parties set out their cases, the commercial judges encourage the use of alternative techniques. The keynote is flexibility. Where a case, or part of it, has been formulated in a pre-litigation document (such as a claim document in a building dispute) the judge may be content to use it, with only a minimal amount of written pleadings. Likewise, expert reports are commonly referred to without any requirement to translate them into "lawyers' language". Computer-generated spreadsheets (such as a Scott Schedule) are commonly used to set out complicated matters of detail, as in disputes between landlords and tenants over the state of repair of a building.

The decision stages

The commercial judges insist on frank and early disclosure of relevant (but only relevant) documents. This helps to identify the strengths and weaknesses of the respective positions of the parties and facilitates settlements. An order will usually be made requiring parties and their representatives to meet to try to resolve the dispute or, at least, to narrow its scope. Where the case proceeds to a full hearing, that hearing is more formal. Detailed legal arguments will be presented or evidence heard from witnesses. The emphasis, however, remains on efficient and expeditious disposal. Parties are encouraged to agree matters which are non-contentious and to deal with contentious matters without undue elaboration.

Digital technology

The use of digital technology is an important feature of the arrangements for commercial actions. The judges' court diaries are available electronically, enabling the date and time of any subsequent hearing to be fixed immediately. Most documents required during the course of an action can be e-mailed to the Commercial Clerk using the e-mail address commercial@scotcourts.gov.uk. Interlocutors, once signed, are e-mailed to the solicitors for the parties. Documents and legal authorities which will be referred to during a hearing are expected to be lodged in electronic format.

The court encourages a free flow of information and views between the court and the business community about the practical operation of the commercial court. A users' committee allows discussion of the issues. Its members include the commercial judges, representatives of the legal profession and representatives from commerce and industry. The committee aims to meet three times a year.